Abby L. Harvey
GHG Monitor
10/30/2015
North Dakota has filed its own suit against the Environmental Protect Agency’s recently finalized carbon emissions standards for existing coal-fired power plants, setting itself apart from a coalition of 24 other states. While this move is merely ceremonial, as all suits against the rule at this time have been combined via court order, the state has exhibited its unique stake in the matter. “The rule is unprecedented and ill-conceived. It infringes on the state’s authority to regulate its own electrical systems under the United States Constitution and federal law,” said state Attorney General Wayne Stenehjem in a release.
The EPA regulation, called the Clean Power Plan, sets state-specific emissions reduction goals and requires states to develop action plans to meet those goals. Between the rule’s proposed and final versions, EPA adjusted several state targets, none more than North Dakota’s. “As proposed in June 2014, the rule would have provided for an 11 [percent] reduction in carbon emissions, but when the rule was published, it required a 45 [percent] reduction from 2012 levels by 2030, a goal North Dakota regards as impossible to attain without the likely closure of one or more of its existing power plants, with a resulting loss of jobs, higher costs of electricity for consumers, and potential reliability problems,” according to a release from Stenehjem’s office.
The rule was finalized in early August, but according to the Clean Air Act, under which the rule was penned, it first had to be published in the Federal Register before being challenged in court. On Oct. 23, the rule, as well as a sister regulation for new-build coal-fired power plants, appeared in the publication, opening to door to legal challenges, which rolled in. West Virginia Attorney General Patrick Morrisey headed a coalition of 24 states in filing a petition for review with the United States Court of Appeals for the District of Columbia, along with a request for a stay of the rule. The coalition consists of West Virginia, Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, Ohio, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, the Arizona Corporations Commission, and the North Carolina Department of Environmental Quality. Oklahoma has also filed a separate suit, bringing the list of states taking legal action against the rule to 26.
The Clean Power Plan was the target of numerous premature challenges that were dismissed on procedural grounds. Opponents argue that the rule, penned under Section 111(d) of the Clean Air Act, would cost billions of dollars to implement and would serve as a means for the administration to strong-arm states into shifting to renewable energy. At the core of the arguments against 111(d) is a belief that the EPA is acting outside its authority in promulgating the rule in the first place. Until now, however, North Dakota had not taken part in any of these legal challenges.
A number of utilities and trade organizations have also filed suit against the rule. All suits at this time have been consolidated under West Virginia v. EPA.
N.D. Senator Highlight Unfair Treatment of State
Speaking on the Senate floor in support of a Congressional Review Act motion against the Clean Power Plan this week, Sen. Heidi Heitkamp (D-N.D.) stressed the stringent emissions reduction target EPA has set for the state. “I am trying to do everything I can to push back against EPA’s burdensome power plant rules to find workable solutions so North Dakotans can continue to have low-cost, reliable electricity. This CRA is one of the many different avenues I am taking to make sure that North Dakota is treated fairly,” Heitkamp said Tuesday, also noting the large change in the state’s target from the rule’s proposed version to its final version.
The senator added that given the perceived vast changes in the rule between its proposed and final versions, it should have been re-proposed, requiring a second public comment period. “How can you take a utility and a state from 11 percent to 45 percent and not reissue that rule?” Heitkamp said.
First Challenge to New Source Rule
North Dakota has also ventured into uncharted territory by filing the first suit against the EPA’s New Source Performance Standards (NSPS) for new-build coal-fired power plants in the U.S. Court of Appeals for the D.C. Circuit. The NSPS requires the use of partial carbon capture and storage on all covered facilities. The rule has not been challenged by any other entity in its proposed or finalized state, though the validity of EPA’s claim that CCS is technically feasible has been questioned.
“North Dakota seeks a determination by this Court that the EPA Final Rule challenged herein exceeds EPA’s statutory authority, goes beyond the bounds established by the United States Constitution and is arbitrary, capricious, an abuse of discretion and not in accordance with law and for the Court to hold unlawful and set aside the rule, and to order other such relief as may be appropriate,” the legal document says.
The suit could prove dangerous for EPA as the promulgation of a new-source rule under Section 111(b), such as the NSPS, is required to promulgate an existing source rule. If the court were to overturn the NSPS, EPA would no longer have the authority to enforce the Clean Power Plan, and both rules would fall.
A coalition of nine environmental and health groups this week submitted a motion to intervene in support of the Environmental Protection Agency in the NSPS case. The rule is “an important component of EPA’s effort to curb the rise in levels of atmospheric CO2 and destructive global climate change, meant to ensure that covered plants ‘will use the best performing technologies to limit emissions of CO2,’” the coalition, comprised of the American Lung Association, Center for Biological Diversity, Clean Air Council, Clean Wisconsin, Conservation Law Foundation, Environmental Defense Fund, Natural Resources Defense Council, Ohio Environmental Council, and Sierra Club, said in its motion.
